By: Franklin ASARE-DONKOH
An Accra High Court (Commercial Division 2), presided over by His Lordship John-Mark Nuku Alifo, has set aside in its entirety the final arbitral award dated the December 10, 2025, in which Ashanti Port Services Limited (APSL) had obtained an order against Justmoh Construction Limited for the repayment of US$33,300,000.00, together with interest and consequential reliefs, in connection with the Boankra Inland Logistics Terminal Project.
In a forty-page ruling delivered yesterday, May 6, 2026, the Court allowed the application brought by Justmoh Construction Limited under section 58 of the Alternative Dispute Resolution Act, 2010 (Act 798).
At the commencement of its ruling, the Court took care to clarify that the application before it was not an appeal against the merits of the arbitral award, but a supervisory application to set aside an arbitral award within the limited statutory grounds prescribed by section 58 of Act 798.
The application for the Applicant was led by Prof. Kwame Gyan, Esq., whose submissions the Court accepted in substantial measure on each of the principal grounds.
Background to the Application
The dispute arose out of the development of the Boankra Inland Logistics Terminal, a flagship inland port project structured as a concession arrangement involving the Government of Ghana, acting through the Ministry of Transport and the Ghana Shippers’ Authority (GSA), with the Ghana Ports and Harbours Authority (GPHA) and Afum Quality Limited as participating shareholders.
APSL was incorporated as the concessionaire vehicle for the Project, with its corporate governance regulated by a Shareholders’ Agreement that fixed a multi-stakeholder board composed of nominees of Afum Quality Limited, GPHA, and GSA.
In August 2022, APSL engaged Justmoh Construction Limited as the EPC Contractor for Phase 1A of the Project under an Engineering, Procurement, and Construction Contract.
In breach of the terms of its own engagement, APSL failed to raise the necessary funds for the commencement of the Project, and thereby failed to reach financial close. Subsequently, GPHA was directed to acquire shares in APSL, pursuant to which the sum of US$33.3 million was paid by GPHA as payment for its share subscription, and the said sum was applied as the advance mobilisation payment under the EPC Contract.
The funds were paid into Justmoh’s account directly in September 2022 to enable Justmoh to commence work on the project site.
APSL’s failure to achieve Financial Close ultimately led the GSA to terminate the underlying Concession Agreement effective the 5th day of August 2023. The Government of Ghana, acting through the Ministry of Transport, thereafter took possession and control of the project infrastructure, materials, plant, and site, and directed GPHA to assume management of the Project going forward.
On the 18th day of October 2023, Justmoh issued a notice of termination of the EPC Contract, citing material breaches by APSL, including non-payment of certified Interim Payment Certificates. Notwithstanding that the State had already terminated the underlying concession and stepped in, APSL filed a Notice of Arbitration at the Ghana Arbitration Centre on the 19th day of December 2023.
A board meeting purportedly ratifying the institution of the arbitration was thereafter held on the 25th day of January 2024, in the absence of the nominee directors of GPHA and GSA.
On the 10th day of December 2025, the arbitral tribunal delivered its final award ordering Justmoh to refund the US$33.3 million together with interest and consequential reliefs.
Justmoh thereafter filed the present application, within the statutory time limit, seeking to set the award aside under section 58 of Act 798.
The Court’s Ruling
The Court set aside the arbitral award on the following grounds:
1. APSL lacked the capacity to commence the arbitration, and capacity cannot be acquired midway. The Court held that Ashanti Port Services Limited did not have the requisite capacity at the time the arbitration proceedings were instituted on the 19th day of December 2023. The company failed to seek and obtain the required board authorisation before the initiation of the arbitration.
2. The Court was firm that the ex post facto attempt to ratify the Chief Executive Officer’s decision to refer the dispute to arbitration could not cure a fundamental defect which goes to the very root of the case. Capacity, the Court emphasised, goes to jurisdiction.
3. The purported board meeting held on the 25th of January 2024, at which APSL sought to ratify the CEO’s earlier unauthorised act, also failed because capacity must be present and exist at the time the proceedings are initiated, and cannot be acquired midway.
The Court further raised the issue of the composition of the board itself. It found that the board which purportedly authorised or ratified the arbitration was not properly constituted at the time the board resolution was made.
The composition of the board did not accord with the requirements of the Shareholders’ Agreement governing APSL, under which the board was to be drawn from nominees of the participating stakeholders, including the Ghana Ports and Harbours Authority and the Ghana Shippers’ Authority.
A resolution passed by a board which is not properly constituted in accordance with the Shareholders’ Agreement could not, in the view of the Court, operate as the lawful act of the company.
2. Participation in the arbitration did not amount to a waiver of jurisdictional objections. The Court rejected APSL’s contention that, by taking part in the arbitral proceedings, Justmoh had waived its right to challenge jurisdiction.
According to the Court, the doctrine of waiver applies only in respect of minor procedural irregularities, and not in respect of matters going to jurisdiction.
3. APSL had no cause of action at the time of the arbitration. The Court further held that, at the time the arbitration was commenced, APSL did not have a cause of action against Justmoh. The termination of the Concession Agreement by the GSA, and the exercise by the Government of Ghana, acting through the Ministry of Transport, of its step-in rights under the Concession Agreement, had stripped APSL of any subsisting right of action in respect of the Project. On the source of funds, the Court found, on the evidence on record, that the sum of US$33.3 million had in fact been paid by the Ghana Ports and Harbours Authority for the subscription of shares in APSL, and not as a loan recoverable by APSL from Justmoh.
4. Observations on Unjust Enrichment
Beyond the principal grounds upon which the award was set aside, the Court further observed that the principle of unjust enrichment weighed heavily against the relief APSL had sought.
It would, in the view of the Court, be unfair for APSL to receive, by way of refund, monies which were not in fact advanced by it; and equally unjust to permit APSL to benefit from its own wrong, having itself been responsible for the breach of contract which led to the State’s intervention in the first place.
The sum of US$33.3 million, having, on the evidence on record, been paid by the Ghana Ports and Harbours Authority for the subscription of shares in APSL, the said sum could not properly be characterised as a loan or advance recoverable by APSL from Justmoh.
In the result, the Court set aside the arbitral award dated December 10, 2025, in its entirety
